Friday, December 31, 2010

Looking back on . . . 2006

I was looking around for material to reflect on wetlands topics in the past year and I did find something new (at least to me) on the DEP website that looked back -- way back: 2006 Status and Trends Report. I honestly just saw this yesterday. Perhaps it's been on the website for months, waiting to be clicked upon. The report is dated "December 2009" and uses the 2006 data required to be submitted monthly by municipal wetlands agencies as a basis to evaluate trends.

(The submission of municipal data arises from the statutory section, C.G.S. § 22a-39(m), that instructs DEP to adopt a regulation establishing reporting requirements for municipal wetlands agencies. The regulation, Regulation of Connecticut State Agencies § 22a-39-14, was duly adopted and in effect as of December 29, 1988. The instructions to the form indicate the form is due monthly.)

In 2006 there were 4,380 reported agency actions. Permits issued accounted for 64.3% of the activities, with agent approvals another 24%. Permit denials (120) constituted 2.7%, permit amendments/extensions another 2.7%, jurisdictional rulings (exemptions) (126) 2.9%, map amendments (85) 1.9% and enforcement (85) another 1.9%. Only about 12% of the work of municipal agencies is not spent on permit issuance. Denials, extensions, exemptions and enforcement are distinctly different from issuing a permit. It's those actions which aren't performed often and don't fall into the permit issuance mode that agencies frequently stumble over. Precisely because they have less experience exercising those portions of their regulations. This past year I had occasion to seek an extension of a permit before the wetlands agency of one of our larger cities. The agency and staff professed to having never handled an extension before. I guess we'll have to wait until 2014 to read the 2010 Status and Trends Report to know if the recession resulted in an uptick of extensions.

Residential development as a whole, whether from a homeowner or a developer, accounted for 69% of the applications, with commercial and industrial applications accounting for 11 % ,and state projects less than 1%.

The report includes some raw data. Some old: number of wetlands and watercourses regulated by the law: approximately 510,000 acres. Some new: number of wetlands acres altered (as authorized by permit) - 75; number of wetlands acres created - 129, for a net gain of 54 acres.

DEP commented on three trends that it noted. One, DEP sees a continuing trend of no-net-loss of wetlands since the late 1990s. On page 8 of the report the activities encompassing the net gain of wetlands are described as acres "to be restored, enhanced or created." The trend of no-net-loss of wetlands would be most beneficial if the majority of the 129 acres were for restoring or enhancing existing wetlands. As I understand it, there is some doubt whether creating a wetland is as valuable as protecting an existing one. I guess my opinion on this trend is cautious optimism.

Another trend DEP noted was the increased amount of action shifted away from wetlands agencies over to the approved agent (one who has completed the DEP training.) The authority of agents to act on applications in the upland review area causing minimal impact was established in the 1996 amendments. In a decade agents went from acting on zero applications per year to over 1,000. These are the driveway repair, deck in the upland review area , etc., where the agent can act more swiftly than the agency, allowing the agency to concentrate on the larger applications. This is a win-win scenario.

The last trend I'll comment on is DEP's interpretation that only 1.9% of all actions are enforcement-related, because the wetlands act is administered so well. Here I part ways with DEP. Enforcement, like jurisdictional rulings and denials, constitutes such a tiny portion of agency work that they are just not familiar with the process nor are they comfortable with it on a routine basis. The burden of proof is entirely different from agency experience with permit applications: burden on applicant in a permit proceeding, but burden on the agency in enforcement. Agencies are used to picking apart submissions of applicants, not putting together water-tight cases. Until a majority of agency members goes through the DEP training, I don't think we'll see an appreciable change in enforcement.

Of course, the data in the 2006 report would be even more valuable if they reflected information from all towns. After "special" attention from DEP, written notice and a new submission date, 25 towns -- 15% of all towns -- still did not manage to submit 2006 data by October 9, 2009. Shall we presume those towns did not collect the data? As a public service, I will list the towns, as the DEP did in its 2006 report (although I will use reverse alphabetical order):

Winchester, Westbrook, Watertown, Wallingford, Stratford, Sprague, Shelton, Scotland, Salisbury, Preston, Plainville, North Canaan, North Branford, New Britain, Middlefield, Meriden, Marlborough, Killingworth, Franklin, Brooklyn, Berlin, Beacon Falls, Ashford, Ansonia, Andover.

To leave on a cheerful note, Darcy Winther reports being busy trying to fill 3 positions in the DEP wetlands program. One, vacated by Carl Zimmerman, will now be (re)filled by him, as he has rescinded his resignation. As I hear it, he is responsible for many, if not most, of the improvements to the DEP wetlands homepage. The other two positions are for wetlands enforcement.

May that help us as we right our boat next year through deficit-plagued waters.

Thursday, December 30, 2010

Training: Are we there yet?

I began this year musing whether there should be legislative changes to the training requirements for wetlands agency member -- and concluding there should be. 2010 brought no legislative or policy changes regarding training. But what about the raw numbers of wetlands agency members trained? How did 2010 fare in comparison to the numbers earlier in the decade?

Darcy Winther of the DEP wetlands training program kindly provided me with a graph mapping out the numbers of participants at the 3 different training sessions from 2000 - 2009. She supplied preliminary and approximate numbers for 2010: Segment I - 100; Segment II - 160; Segment III - 130, for an approximate total of 390 participants. (Note: the number of attendees to Segment III is not yet reflected on the graph.) When this year's numbers are finalized, the 11-year graph will be completed and posted them on the DEP wetlands homepage.

Bad news, folks. In 2010 there were fewer attendees at Segments I, II and III than in any other year in the 2000s. Let's recap: Segment I is the beginning curriculum which introduces new staff members and agency members to the legal, administrative and entry natural resource matters; Segment II is the "continuing education" component with annual updates based on legislative changes, court decisions and developing natural resource techniques; Segment III explores one or more areas in depth. Segment I and II are the "workhorse" units that, in my opinion, should be the focus of attention.

(Alas, I have tried unsuccessfully to import the DEP graph. We will have to await DEP's posting it on the DEP wetlands homepage.)

There are reports for two years (2005, 2006) on the DEP website. Those reports present different numbers of attendees than the graph reflects. On the graph, it appears that there were more attendees to Segment I and II in 2010 than in 2005. Yet, the 2005 report indicates that a total of 279 attended training, broken down into Segment I (110) and Segment II (169), while in 2010 the equivalent numbers are 260 (Segment I: 100 and Segment II: 160). In the text of the 2006 report the total number of attendees is listed as 452 for the year, but the graph indicates over 500.

What conclusions can we draw from these data? Are agencies keeping themselves trained on the changes in the law and resource management?

Not if the graph is any indication. With 170 municipal agencies (the town and the borough of Groton, I believe, are responsible for the number being one greater than the number of towns in the state), over the 11-year period, Segment II numbers show less than 1 person/municipality, on average, is receiving the annual updates. Even the statistics for 2004, the highest in the decade, average less than 1.5 persons/municipality for Segment II. That was a critical year, as the Connecticut Supreme Court ruled in October 2003 that wildlife was not within the jurisdiction of the wetlands act and the legislature swiftly enacted a compromise, reversing in part and affirming in part, the court decision, with an effective date of June 2004.

As for those new to the wetlands act, it is hard to draw a conclusion. The majority of members are likely to remain on an agency from year to year. With the exception of 2004, less than one person/municipality received Segment I training. Again, the highest turnout still did not exceed 1.5 persons/municipality. Without knowing the turnover on all wetlands agencies and whether the "new" members had ever served before in the same or another town, it can't be estimated what percentage of new members who should be getting training were, in fact, trained.

What can be ascertained is this: the overwhelming majority of current wetlands agency members are not participating in Segment II training, and thus are not being trained on the changes in the statute and the case law. I must say that this voluntary system of training falls short of guaranteeing that these "indispensable and irreplaceable but fragile natural resource(s)" are being protected by wetlands agency members in the manner set forth by the wetlands act.

So, to answer the question: Are we there yet?

Not by a long shot.

Thursday, November 25, 2010

Giving thanks

We believe we are thankful for the things which make us happy or benefit us. And it turns out we are thankful for those we thought we had nothing in common with. Like the Puritans. I, for one, don't particularly revere Harvard Commencement Day. Yet, without the Puritans' abhorrence and prohibition of the celebrations of Christmas, I might not be sitting here counting my blessings in cyberspace on Thanksgiving Day, 2010.

(It must be true; I read it on Wikipedia, the ACLU website and the Qumran Bet website).

So, on this day I reflect on the many, named and unnamed, whose interactions have enriched my blog, from those in the past year who took the time to answer my questions, to send me a comment, to inform me on the legislative process, to muse with me for the umpteenth time on whether the holding on agency jurisdiction in Prestige Builders can be reconciled with River Sound, to kick me in the butt when I wasn't covering a case or a topic in a timely manner, to those whose unwitting stray comment set in motion a blog post, or whose gracious civility while taking the time to utterly disagree with me was enlightening and welcome, or whose provocative rudeness made me value those possessing the previously-mentioned gracious civility even more, and to those who (gasp) have thanked me.

And in (almost) no order other than alphabetical, (in future arbitrary listings I promise reverse alphabetical order for the alphabetically-impaired, think David Wrinn,) I give thanks to:

Matt Berger, the Honorable Kevin Booth, Beth Cavagna, Jeff Dowd, David Drewry, Dave Emerson, Robert Fromer, Adam Gutcheon, Sean Hayden, Peter Hearn, John Karas, Michael Klein, Dwight Merriam, Ken Metzler, Joan Nichols, Ed O'Connell, Tom ODell, Ed Pawlak, Jeff Pimentel, Matt Ranelli, Chris Roy, David Sherwood, Brian Smith, Steve Tessitore, Karl Wagener, Josh Wilson, Darcy Winther, David Wrinn, Chris Zurcher

and Barbara Brooks (August 25, 1952 - October 25, 2010) in whose sisterly shadow I lived every day of my life until quite recently.

There will be other days for more wetlands cases involving the denial of certification, for training videos, for splitting hairs over the texts of court decisions.

Now, on with the beets bread pies . . . .

Wednesday, November 24, 2010

The Supreme Court's final word on the River Sound case

This past summer the state Appellate Court released its decision in River Sound Development, LLC v. Inland Wetlands and Watercourses Commission, affirming the Old Saybrook wetlands agency's denial of a wetlands permit for a golf course, 221 residential units, roads and associated infrastructure. At the time I posted a number of entries on this blog about the decision -- regarding the jurisdiction of agencies to regulate activities outside of the officially adopted upland review area and the consideration of wildlife. Later in the summer, River Sound Development petitioned for certification to appeal to the state Supreme Court, there being no direct right to further appeal.

On October 12, 2010 the Supreme Court published its decision denying River Sound Development's petition for certification. The full citation now reads: 122 Conn. App. 644, cert. denied, 298 Conn. 920 (2010). And with that, the Supreme Court declined to utter anything either about the Appellate Court's decision or its legal analysis.

One of the readers of this blog inquired what can be read into the Supreme Court's decision and what that means for the Appellate Court decision. Well, the Supreme Court took pains, more recently in October, to remind us that we can read absolutely nothing into its decisions to deny certification. "We have made it clear that a denial of a petition for certification to appeal does not signify that this court [the Supreme Court] approves of or affirms the decision or judgment of the Appellate Court." Potvin v. Lincoln Service and Equipment Co., 298 Conn. 620, 653 (2010). It leaves for another day, if ever, for the Supreme Court to weigh the issues and pronounce a decision.

What does that mean for the Appellate Court decision? In the absence of a Supreme Court decision, it is binding precedent. And what if another Appellate Court decision decided a few years earlier is not consistent (as it seems to me) at least as to jurisdiction over activities outside of the adopted upland review area? That is a legal wrinkle to be smoothed out by the Supreme Court in another appeal.

While the River Sound case may be over, the last word on the proposed activities for the property has yet to be uttered.

Wednesday, October 27, 2010

Robert Fromer Responds to Blog Posts

I received an e-mail from Robert Fromer today disputing my blog posts on the public hearings that resulted in the Windsor Town Council removing him from the Windsor wetlands agency in early October. With his consent I am publishing his e-mail on my blog. I am unable to post the 2 letters that were sent as attachments. The first letter, 4 pages with a 5 page attachment, dated September 7, 2010 to the Windsor wetlands agency addresses the "recurring false and misleading staff comments for the September 7, 2010 meeting." The second letter, 3 pages long with 2 attachments comprising 14 pages, is addressed to the Windsor Town Council and is entitled: "Complaint concerning the consistently recurring failure of the Wetlands Agent, Cyd Groff, Linnea Gilbert, Chairman of the Windsor Inland Wetlands and Watercourses Commission and member commissioners to reasonably interpret and implement the Inland Wetlands and Watercourses Act and the Commission's Regulations on the necessary findings for the delegation of authority to approve applications and issue permits."

Robert Fromer speaks:

I read your blogs based on your appearances at the public hearings for my removal. It's crystal clear that you haven't read the written evidence, nor do you know the actual facts. I am very disappointed in you because as an attorney and former AAG, I believed that you or should base your commentary strictly on facts. Hearsay and testimonies are not evidentiary facts but opinions. If you read the evidence, you'll learn that the primary issue is the utter incompetence of Cyd Groff and the commissioners on certain statutory and regulatory issues, which they have and continue to violate. I have attached recent correspondence to the town manager and town council on just one such issue; there were numerous others.

I took my oath of office very seriously. I challenged all information coming to the commission based on my philosphy of "trust but verify." The other commissioners totally relied on Agent Groff when her opinions or activities were often wrongful. I wonder if you know the three basis for removal of a wetlands commissioner.

In fact, I would love to debate you at public forums on just the unlawful removal. Are you up to the challenge?

A Citizen Attorney General

My response:

I declined the invitation to debate the issue. The point isn't what I believe is the right outcome. I was neither the protagonist nor the decision-maker in that proceeding. I acknowledge I didn't read the trial notebooks. I listened to the sworn testimony and I called 'em like I saw 'em. My sight may be imperfect. It's just one vision. But a debate? It's not about me, Robert Fromer, it's not about me.

Wednesday, October 6, 2010

Fundamental fairness and orderly agency meetings

Reports are coming in, so says The Day, that Robert Fromer will be appealing his removal from the Windsor Town Council and that he will prevail on appeal. At this point it's time to look at the bigger picture.

Is there nothing to be done short of permanent removal of a disruptive member?

As I have written, not every town will have the fortitude of the Town of Windsor to undertake the process of removal of a wetlands agency member who is a disruption to the orderly process.

Our administrative agencies are required by the courts to conduct their business in accord with "fundamental fairness." The Connecticut Supreme Court, in a wetlands appeal, has instructed us to use that phrase instead of the previously used "due process rights" which suggested there is a constitutional source of such rights, which is limited to those who have a property interest. Fundamental fairness, on the other hand, is owed to everyone.

The chairwoman of the Windsor wetlands agency described Fromer's unwillingness to cease talking, an unwillingness to allow the chairwoman to speak and to move the meeting along. Both the town manager and she discussed a technique of calling a recess, in order to break the flow. It was not clear to me if and how that technique was used and its effect.

Is it fundamentally fair to have applicants and the public subjected to agency conduct which has been characterized as "dysfunctional" and "chaotic" which resulted in at least 2 instances where the agency failed to consider the merits of the application and impose any conditions because the agency appeared fatigued by the unrelenting talk of one member? I think not.

If applicants are owed notice and the opportunity to be heard, is anything heard when a member has so disrupted the process to render it "chaotic"?

I recall the early 1990s in Middletown, where I reside. Syd Libby had engaged in highly disruptive interference with city council and agency business, sometimes accompanied with his verbal hurling of anti-semitic epithets. (Ironically enough, Mr. Libby was Jewish). This took place at the Common Council meetings and the Conservation Commission in town over a couple of years, as I recall. The police were called in and he was arrested on a number of occasions for criminal trespass and disorderly conduct. Mr. Libby was convicted, in fact, on such charges for conduct at a Conservation Commission meeting. (The Middletown Conservation Commission does not serve as the inland wetlands agency in town.) The Commission had voted to go into executive session to consider the purchase of property as part of the city's open space acquisition; Mr. Libby refused to leave the meeting. His physical presence prevented the Commission from executing its duties -- which by law were authorized to be undertaken outside of public purview.

Perhaps, you say, there is a difference between disruptive behavior of an appointed member and a member of the public. As far as the disruption goes, there is not. Removing the disruptive member removes his ability to vote, at least on that application. Are appointed members allowed to be as disruptive or more disruptive than the public simply because they have been appointed? What would the legal basis be? After all, the member has sworn to uphold the law. If a member's conduct deprives the applicant and/or the public of fundamental fairness, how can the agency fulfill its duties?

So, I suggest that there is a judicious use of police presence and police action when meetings descend into anarchy. (I could not bring myself to write about police intervention, as I had intended last Friday morning, after I was accosted with online pictures of German demonstrators bleeding from their eyes after police intervention in the Schlossgarten park in Stuttgart, Germany.) I brought up this topic with Attorney Mark Branse as we were carpooling together last week. We have both been at public hearings where the police have been called in. In hotly contested proposals members of the public were still allowed their opportunity to express themselves, evenly heated, within the bounds of civil discourse. It may have served to chill disruptive behavior, however.

Along with Assistant Attorney General David Wrinn, Mark Branse and I will be offering two workshops as we have for the past 3 or 4 years at the CACIWC annual meeting in November. We offer an update on legislation and case law. Mark and I have decided that controlling chaotic agency proceedings is as important as understanding the latest Appellate Court case on consideration of wildlife (both of we will also be covering.)

Will the judicious use of police presence avert another town from having to await a mass of evidence such as Windsor accumulated? Hopefully. Is it a step that should be undertaken with counsel from the town? Absolutely. Will it curb repeated disruptions? Unknown. Will it stop people from filing FOIA request upon FOIA request? Not at all.

A reader of this blog with whom I have shared my idea of the use of police was frankly aghast at my implicit position that member conduct could ever be criminal. But consider the inverse: member conduct is never criminal? "Never" is a long time. Our messages were flying through cyberspace at each other. I invite readers to add their comments at the bottom of any post. Bring on the searing, scathing comments and the civil dialog that will ensue. And if you prefer, you may just correspond with me at

I wasn't sure at the beginning why I decided to go to all of the Windsor Town Council meetings. David Drury of the Hartford Courant was certainly doing an excellent job keeping me informed. I guess I wanted to see if this is the new norm of how to remove a commission member. Thirty years since the Obeda case, our administrative hearings have become as formal as our court proceedings. I guess I wanted to understand how far the conduct of one member had gone and what that had done to the process. I was struck by the sense of helplessness and hopelessness of the volunteer members . . . and by the less than adequate quality of wetlands permits that were being issued.

May civil discourse rule.

Final vote by Windsor Town Council removes Fromer from wetlands agency for cause

In the shortest meeting to date, approximately 15 minutes, the Windsor Town Council on Monday night received the findings of fact drafted by Town Attorney Vincent Oswecki, Jr., and made a motion to remove Robert Fromer for cause for one reason: Fromer "impedes the ability of the Inland Wetlands and Watercourses Commission in performing its duties to the public." That one reason is bolstered with 24 enumerated bases of support.

The findings are remarkably crafted to reflect the breadth and depth of testimony of the various people who testified, town employees, members of the agency and representatives of applicants. The findings refer to his interference with the wetlands agent by making "incessant demands . . . including over 600 e-mails;" his constant disparagement" of the wetlands agent creating "a hostile work environment;" his disparaging remarks about fellow commissioners "discourag[ing] volunteerism;" "he uses the Commission as a tool to press his personal, radical agenda on nearly every issue, disparaging anyone who disagrees with him;" his repeated insistence on pursuing matters beyond the agency's jurisdiction; his creating a "hostile, dysfunctional atmosphere . . . by intimidating other members of the Commission from fully participating by demeaning them and demeaning the applicants;" his "domineering, arrogant and hostile behavior resulting in repeated disruptive clashes with other members . . . staff . . . other representatives of applicants appearing before the commission; his "grandiose sense of his rights" and his view that "other members of the Commission, staff and others as targets to be dominated and humiliated."

The findings culminate in conclusions such as: "he does not possess the social norms of behavior to constructively participate on the Commission;" and "a man who aspires to be the 'most hated man in Windsor', 'Bad Guy', or 'Public Enemy Number 1', exhibits disdain for the general public and common good and cannot be left in position of serving the Town of Windsor."

One basis lays out a reference to the orderly process envisioned by the Wetlands Act, set out in the legislative finding in Section 22a-36 of the General Statutes, and how Fromer treated the regulations as "a spider web to advance his agenda and to trap and delay applicants." Fromer's predatory web was implicitly contrasted with the oft-repeated statutory reference in that same statutory finding to the "wetlands and watercourses [being] an interrelated web of nature."

The motion was made and seconded. It was no surprise how the Town Council would vote. But the Council used its discussion on the motion instead to reach out in two interesting ways. Deputy Mayor Alan Simon spoke directly to the residents of Windsor -- he apologized for Fromer's appointment and for the waste of town time and money to remove him. I was moved by this gesture. When is the last time you heard government apologize? (How many decades did it take for a Congressional apology for the internment of Japanese-American citizens during World War II?)

Council member William Herzfeld addressed the judiciary, with the hope that whatever limitations the Obeda case may have imposed in that 1980 Connecticut Supreme Court decision would not be an obstacle to Fromer's removal thirty years later.

The vote of the Town Council followed: 8-0.

The Town Council was remarkable in its diligence and fortitude in reviewing the mass of documents submitted on both sides and conducting lengthy night hearings.

But I return to my original thoughts: is this the only avenue left to agencies and towns? Certainly there are towns unwilling to expend the time and money to remove a commission member. My final thoughts in the next post.

Friday, October 1, 2010

Continued musings on Robert Fromer: Civil Discourse Interruptus -- Stuttgart, Germany

I sat down at my desk this morning to continue my musings on the proceedings before the Windsor Town Council and specifically the proceedings before the Windsor Inland Wetlands Agency for the past 18 months, described by the town manager, environmental planner and commission members alike as "chaos."

But the tremendous winds blew in the chaos from Stuttgart, Germany where massive demonstrations are underway by a citizens group opposing "Stuttgart 21," an equally massive construction project to move the above-ground main train station underground. The project will necessitate the removal of 282 trees in the Schlossgarten, a centrally located urban park near the train station. The first 25 trees were scheduled to be taken down this morning beginning at dawn.

Peaceful protesters arrived yesterday, followed by others with reports numbering from the tens of thousands up to 100,000 -- the participants range from school age children through retirees. It is reported that one thousand police created a human chain around the 25 trees to be removed today. The interactions between police and protestors escalated in the use by police of pepper spray, tear gas and water. The police report that 26 demonstrators between the ages of 15 and 68 have been arrested and that the German Red Cross has treated 114 wounded demonstrators.

While living in Munich in 1975-76 and Nuremberg in 2003, I traveled through the Stuttgart train stations dozens of time to visit my relatives who live in Stuttgart and villages in the vicinity. The reports of chaos there are heartbreaking.

I will return to civil discourse in Connecticut in another post.

Wednesday, September 29, 2010

Windsor Town Council directs Town Attorney to draft language to support removal of Robert Fromer

At the end of a three-night, 14 hour public hearing, last night the Windsor Town Council voted to request that the town attorney draft findings of fact to support the position that Robert Fromer be removed for cause from his volunteer position on the Windsor Inland Wetlands and Watercourses Commission. The town attorney's findings of fact will be presented to the Town Council, for its vote at a Town Council meeting on Monday, October 4th at 6:30 pm.

This may be only the second instance of a wetlands commission member being removed by a municipal legislative body in the state. The removal of Barbara Obeda by the Brookfield Board of Selectmen was overturned by the Connecticut Supreme Court in 1980 in Obeda v. Board of Selectmen, 180 Conn. 521 (1980).

On Monday and Tuesday nights the Windsor Town Council resumed public hearings. As noted in an earlier post, the public hearing is being conducted as an adversarial proceeding with the Windsor Inland Wetlands and Watercourses Commission presenting the case for Mr. Fromer's removal. On Monday night, the chairwoman, Linnea Gilbert, and member Willa Nemetz, testified again, concluding the presentation of agency members. The testimony covered the tsunami of e-mail correspondence that Mr. Fromer generated to staff and the agency, the condescending tone of the e-mails and his similar decorum at agency meetings.

The environmental planner, Cyd Groff, described her harrowing work environment in which she received 611 e-mails from Mr. Fromer since he has been a commission member (in comparison to between 3 and 46 e-mails from other members during the same time period). In addition, Mr. Fromer began a course of Freedom of Information Act (FOIA) requests in December 2009 for a 5 month period (ending in late April 2010) in which he filed 34 requests. These requests were similar in nature. Every few days he requested all documents that Ms. Groff created or received during a 1 or 2 day time period. Since June 2010 he has filed another 15 FOIA requests. When asked by a Town Council member on Tuesday night whether his removal from the wetlands commission would cause him to stop filing FOIA requests, Mr. Fromer answered no. To Ms. Groff's characterization that e-mails written in 26 font with numerous exclamation marks in bright colors accusing her of ignorance were insulting, harassing and demeaning, Mr. Fromer subsequently testified that he deals in the world of facts and was putting forth factual information.

The town manager testified on Tuesday night. He become involved in meetings about Mr. Fromer's conduct after contact from the agency chairwoman and the environmental planner. Mr. Fromer's attorney established on cross-examination of the town manager that the Town of Windsor has not taken any steps to object to or oppose the FOIA requests to date.

With the town manager's testimony, the wetlands agency completed its presentation.

Mr. Fromer testified in opposition to the Town Council's resolution to remove him for cause. He began by answering a few pointed questions by his attorney: did he financially benefit from being on the commission and the like. Then he took off with an expansive answer that presaged his (what seemed like) 20-minute stream of consciousness monologue. He asserted that he was appointed as a "citizen attorney general" to the wetlands agency. He then began quoting from a 1974 Connecticut Supreme Court case that used the term "private attorney general" in the context of the Connecticut Environmental Protection Act (CEPA), not the Inland Wetlands and Watercourses Act. Having co-authored a book on the Environmental Protection Act (Volume 15 of the Connecticut Practice Series by West), I recognized the quotation but couldn't fathom why he was reaching into CEPA to bolster his municipal appointment. He dove in headfirst and didn't resurface until quoting a United States Supreme Court case from the 1970s which was quoted in CEPA caselaw.

His attorney asked if he is a zealot. His answer quoted from the Wikipedia entry for "zealot," looking back to the historic sect of zealots, then forward to the reading of a portion of the Environmental Protection Act, then back to Aristotle with at least two references to Harry S. Truman thrown in, a number of worn-out phrases for good measures ("what separates us from beasts"), composting toilets, excerpts from the legislative finding in the wetlands act (C.G.S. section 22a-36), statutory excerpts regarding feasible and prudent alternatives, Darcy's law, the state Supreme Court agreeing with him in Gardiner v. Conservation Commission, 222 Conn. 98 (1992), the staff's lack of knowledge of the law an insult. I believe he said the environmental planner had trouble with deductive reasoning. Maybe not. It was hard to follow.

Did I miss something? Without a topic sentence, I just couldn't get my bearings of where he was going.

Buried somewhere in that testimony was a statement about pesticides. I certainly do think that the application of pesticides to wetlands or watercourses is a regulated activity. Did he say that? I'm not sure.

He enumerated his characterization of legal errors voiced by the town attorney. He seemed fatigued by having to instruct the environmental planner "over and over again" about the law. He was insistent that the planner was not bringing matters for agent (the environmental planner) approval to the wetlands commission first. I couldn't make sense of that. I checked the statute this morning, C.G.S. section 22a-42a(c)(2). Once the agency has delegated such matters to the agent, there is no first review by the agency. What was his point?

But, his mistakes in law aren't the point. He was accused of creating a hostile environment for staff and the commission. His response: the chairwoman is narrow-minded and limited. He was not being insulting to staff; he was being factual.

Interspersed into his testimony were odd questions like: what are polyaromatic hydrocarbons? The answer led to a tangent on driveway sealants.

Could he work with others? His reply: if they listen to him, yes.

At the end of the evening the Town Council voted to request the town attorney to draft findings of fact to support Fromer's removal for cause. The Town may be done with this issue next Monday.

I'm not. Are we to believe that inland wetlands agencies do not have the authority to rein in members of the commission or members of the public who disrupt the process? Does an agency or a town have no option but removal of a commission member? Must an agency wait for a months or years until an attorney for one applicant and an engineer for another can testify that agency members didn't engage in reasonable consideration of the impact of the proposed conduct because they were fatigued/intimidated/disgusted with one agency member's conduct?

As I said, I'm not finished with this issue.

Friday, September 17, 2010

Windsor Town Council hearing to remove wetlands commissioner: to what end?

Robert Fromer is approximately halfway through serving his 4-year term on the Windsor Inland Wetlands and Watercourses Commisison. Earlier this year the Windsor Town Council acted on a referral of the Agency to suspend him while proceeding on a resolution to remove him from his position.

On Wednesday, September 16th the Town Council began receiving testimony from the Windsor Inlands Wetlands Agency, represented by counsel, in its referral to the Town Council that member Robert Fromer be removed from its agency. I stepped into the Council chambers a minute before the proceeding began. The evening began with the town attorney, representing the Town Council, who offered legal opinions on a flurry of motions filed by Fromer. I immediately thought I had stepped into the courtroom of a trial on the complex litigation docket (where I have tried cases). Everything about the evening was legal and formal. With Mr. Fromer represented by counsel, there was serious money committed to this proceeding. Doubly so, for the town. The "trial notebook" of exhibits, agency and joint, was at least 3 inches thick. The counsel for both parties, the wetlands agency and Fromer, agreed on the rules of the proceeding, complete with opening statements.

Those statements led me to believe this would all be about Mr. Fromer and his behavior. In the opening statement we heard from the counsel for the Agency that Mr. Fromer's professed desire to be the most hated man in town was likely to be achieved, while Fromer's counsel offered members the opportunity to resign if they couldn't work with him.

While the testimony certainly supported the Agency's claim of Fromer's rudeness and his condescension towards applicants and members alike, it also provided a disturbing picture of how the Agency's response to Fromer seemed to affect its performance of its duties. In the first 4-1/2 hours the Agency, through counsel, presented two categories of witness: those presenting matters before the Agency and Agency members themselves. One attorney testified who represented a major business in town with complex remediation as part of its application. She explained how Fromer was fixated on the public notice for the hearing and his belief that it was defective. That was the sole issue addressed by the Agency in lengthy discussions. Once the discussion ceased on notice, the Agency voted to approve the application with no conditions imposed. The attorney was surprised and voluntarily returned to the agency staff and asked what conditions staff wanted.

A similar tale was told by an engineer who proposed a 2-lot subdivision. As he testified to the Town Council, his presentation was sidetracked and entirely consumed by seemingly irrelevant topics outside the jurisdiction of the Agency. Instead of discussing sedimentation and erosion, this engineer found himself discussing under what conditions the public health code, not the wetlands act, allowed composting toilets. The application was not thoroughly considered, in his opinion. That night the application was approved.

These representatives spoke of the Agency as "held hostage" or "rendered ineffective" by Mr. Fromer and that its proceedings were "peculiar."

Six members of the eight-member commission, including the chair and vice-chair, testified about Mr. Fromer's behavior. Collectively and individually they found his behavior rude, condescending, obstructionist. They described their meetings as chaotic, embarrassing, frustrating. Fromer alienated other members by filing complaints with the Freedom of Information Commission in which the members' actions were the subject. Some members testified about feeling intimidated by Fromer.

Five of the six testified that if Mr. Fromer is permitted to remain on the commission, they will resign. One member said she would consider resigning.

Why did the commission give short shrift to the wetlands concerns once Fromer ceased monopolizing meetings? Were they so frustrated, fatigued, afraid that it would unleash Fromer again? They didn't say.

I grew concerned over the course of the evening of what this proceeding was revealing. Assuming for a moment that the Town Council ultimately believes everything that was presented in the first 4 hours of the hearing, please note Mr. Fromer has not yet begun his defense -- the agency members have painted a vivid picture of dysfunction. Is there nothing short of an expensive mini-trial to assure that the wetlands agency resumes functional conduct in carrying out its duties?

The trajectory of this proceeding is either that the Town Council will vote to remove Mr. Fromer with likely court appeals to follow or Mr. Fromer will be reinstated and a quorum of the members will resign. Each outcome is costly on a number of levels.

The proceeding continues on September 27th.

Tuesday, August 31, 2010

River Sound Development, LLC seeks further appeal

River Sound Development, LLC, has filed papers dated August 16th (within the appeal period) to have its appeal heard by the state Supreme Court. The Appellate Court decision was the subject of three blog entries in July. River Sound's proposal for a golf course and houses on approximately 1000 acres in Old Saybrook was denied by the Old Saybrook wetlands agency. River Sound is seeking permission (petition for certification) to have its appeal heard by the Connecticut Supreme Court, as there is no right to a direct appeal.

The Appellate Court in River Sound concluded that the Old Saybrook wetlands agency properly exercised jurisdiction over activities occurring outside the upland review area because a majority of the proposed activities are proposed with the review area. As River Sound rightly points out, previous Appellate Court precedent holds that a commission has no jurisdiction outside the wetland or watercourse resource unless the commission has adopted a regulation establishing an upland review area. Two Appellate Court decisions which are inconsistent with each other. River Sound calls it a "perfect opportunity" for the Supreme Court to resolve this important issue of jurisdiction.

Yes it is.

Buffers vs. Upland Review Areas: predictability or flexibility?

On Monday, the Connecticut Law Tribune published an editorial endorsing a legislative initiative to create a 100 foot mandatory no activity buffer zone from wetlands and watercourse boundaries that will amend the zoning statutes, not the wetlands statutes. The editorial focused on the legislative standstill that has arisen in the past few sessions with predominantly the homebuilders association in counterpoint to the environmentalists who sought such changes in the wetlands law. The proposed legislation was covered in a post earlier this year.

The editorial endorses a one-size-fits-all approach: that a mandatory 100 foot buffer is superior to "weak optional protection" afforded the existing upland review area in the wetlands statute. The editorial is honest enough to acknowledge that when the land contours move away from a wetland or watercourse perhaps a few feet of vegetation is sufficient to protect the wetland resource. Conversely, it acknowledges that in a steeply graded area 100 feet may be inadequate. So, this approach endorses the ease of predictability -- the buffer is 100 feet, regardless of the level of protection needed or afforded, over flexibility. Thus, one landowner, for the greater good of predictability, will leave vegetation intact or allow vegetation to reclaim a cleared area. The "quid" for this "quo" will be mandatory clustering. The landowner will be allowed the same number of units to be developed in a smaller area. The issue seems to have moved away from wetlands protection to a different "greater good," cluster development .

Do you want a paintbrush that covers a broad swath with uniformity and relative speed (no public hearings, garbled conditions or appeals based on lack of substantial evidence)? You will favor a mandatory buffer, even if you can't line up the swath with the protection of the resource.

Do you yearn to see the brush strokes articulate with precision the differences between resources and the creative conditions that can be crafted to find the perfect fit between public comment and a proposed project? Then the flexibility of the current regulatory scheme, which already allows an agency to protect vegetation around wetlands and watercourses will satisfy you.

It is refreshing to read an article where the words "buffer" and "upland review area" are used correctly. In Cornacchia v. Environmental Protection Commission, 109 Conn. App. 346, 357 (2008), the Appellate Court pointed out that the Darien wetlands agency referred to the area within 50 feet of the wetlands and watercourses, as "buffer," "setback area," "protected area," and "regulated area." The Court countered that whatever the commission calls it, the area "is not a protected or regulated area but rather an upland review area where certain activities may be regulated because of the activities' likely impact or effect on the nearby wetlands and watercourses."

I still encounter a tremendous variation in what commission members understand their authority is within the upland review area.
The learning curve is perhaps too slow.

Which brings me back to training of agency members. I will return to the topic of training soon.

Removal of Robert Fromer from the Windsor wetlands agency: continue to stay tuned

I reported in June on the action of the Town Council of Windsor passing a resolution, at the request of the Windsor wetlands agency, to remove Robert Fromer from the wetlands agency, so that he not finish up his remaining two years. The public hearing to which he is entitled under the town charter to contest the action, was originally scheduled for July. The hearing was delayed until August to afford Mr. Fromer the time he requested. The August hearing was scheduled for early August until a notice issue arose, at which point the hearing was canceled. The public hearing has been rescheduled for Wednesday, September 15th.

Friday, July 30, 2010

Consideration of wildlife within jurisdiction of wetlands agencies

River Sound Development, LLC v. Inland Wetlands and Watercourses Commission, Part III

The River Sound case affirms the authority of wetlands agencies to consider wildlife and base decisions on the adverse effect to wildlife under certain circumstances. However, the wording used by the court decision may lead agencies to believe it's easier to consider wildlife than it actually is.

River Sound Development challenged the authority of the agency to consider the life cycle of certain amphibians (spotted salamander, marbled salamander and wood frog). The decision starts out with a discussion of the Supreme Court's decision in AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150 (2003). As noted in an earlier post, the Supreme Court through that decision removed wildlife from the jurisdiction of wetlands agencies. It allowed for an exception in footnote 19 on page 163 for the "extreme case where the loss of or negative impact on a wildlife species might have a negative consequential effect on the physical characteristics of a wetland or watercourse . . ." The Appellate Court pointed to the amendment of the wetlands statute which reversed in part and affirmed in part the court's holding in AvalonBay. The legislation reinstated the consideration of wildlife within the jurisdiction of wetlands agencies. On the other hand, the legislation affirmed that for activities outside of wetlands and watercourses an agency can't base a permit denial on wildlife unless the proposed "activity will likely impact or affect the physical characteristics of such wetlands or watercourses." General Statutes § 22a-41(d).

The Appellate Court ended that discussion of the law noting that "substantial evidence was presented to show that the amphibian life contributed to the life cycle of the wetlands themselves." River Sound Development, LLC v. Inland Wetlands and Watercourses Commission, 122 Conn. App. 644, 654 (2010). That is neither a useful fact nor the precondition for an agency to deny an permit when the activities occur outside of wetlands and watercourses.

There is just one paragraph in which the amphibian facts are laid out in the court's decision. The applicant's expert, Michael Klemens, provided the expert opinion on which the agency relied. The agency determined that the reduction in amphibians, specifically wood frogs, due to fragmentation of the forest would have an adverse physical effect on the water quality of the vernal pools. Klemens explained that wood frogs remove the detritus from the pools. "They're one of the few species which you can say there's direct nexus biologically." River Sound Development, LLC v. Inland Wetlands and Watercourses Commission, 122 Conn. App. 644, 655 (2010). After citing Klemens' characterizing wood frogs as a "keystone species in terms of the wetlands cycles," the Appellate Court concluded that there was substantial evidence in the record that the loss of wood frogs would have an adverse effect on the physical characteristics of the wetlands.

What's not clear from the decision is the size of the population. In discussions with David Wrinn of the Attorney General's Office representing DEP, I learned that the Appellate Court was presented with briefs and oral argument that reflected many more facts from the record than were included in the court decision. He pointed out that Atty. Matt Ranelli representing the Town of Essex, "connected the dots," between the relevant facts and the triggers in the law. Unlike the population of salamanders in AvalonBay, a handful, there were a couple hundred of wood frog tadpoles reported in a number of vernal pools. As quoted in the court decision, the substantial reduction in the population of wood frogs affects the amount of detritus taken up in the pool, which in turn affects the water quality, a physical characteristic of the waterbody. The elimination of a handful of wood frog tadpoles, for instance, would be unlikely to support a denial, as it would be harder to "connect the dots."

The decision understated some of the important facts in the case. This case is a Big Deal. When a record lines up expert opinion about the adverse effect of development on the population of a species, for which there is a population significant enough to affect the quality of wetlands or watercourses, the agency will have a valid basis to deny the permit.

Sunday, July 25, 2010

Can a wetlands agency regulate activities that occur outside of the upland review area?

River Sound Development, LLC v. Inland Wetlands and Watercourses Commission, Part II

Good question. An important, fundamental question. Now with the decision in the River Sound case, there are two Appellate Court cases with different rulings -- i.e., there is no definitive ruling.

The case law prior to River Sound:

In my December 2009 countdown to the end of the prior decade, I nominated the decision in Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn. App. 710 (2003), cert. denied, 269 Conn. 909 (2004) as the fourth most important event of the decade. That case established that in order for a wetlands agency to exercise jurisdiction over activities occurring outside of the wetlands or watercourse, it must first have adopted a regulation defining that area. The Supreme Court declined to accept that case for further appellate review and declined to reach that issue in another Supreme Court case. Those were missed opportunities.

What River Sound held:

Well, it didn't answer the question. Here's what it did.

The Old Saybrook wetlands agency has a regulation defining a regulated activity as certain activities conducted within or use of a wetland or watercourse or within 100 feet measured horizontally from the boundary of any wetland or watercourse. A 100 foot upland review area. It turns out that about 2/3 of the wetlands agencies have adopted a 100 foot upland review area.

In the seven paragraphs devoted to this specific legal issue (Section IA), the Appellate Court spent six paragraphs reviewing the case law that clearly establishes that wetlands agencies may adopt upland review areas by regulation. Agreed. No party disputed that in this case. Did the Appellate Court miss the issue in the appeal? No. In the first sentence of Section I, the decision reads:

"The plaintiff [River Sound] first claims that the commission improperly exercised jurisdiction over activities not occurring within a wetland or watercourse or within 100 feet of a wetland or watercourse and over impacts to species."

(I'm unable to cite page numbers as of the writing of this post, as only the unpaginated advance release version is available.) That's the issue.

In the penultimate and ultimate sentences in the final (seventh) paragraph on this issue, the Court finally addresses the issue by stating:

"While some of the annotations reference activities occurring outside the commission's upland review area, the majority of the annotations identify specifically regulated activities that are within the upland review area. Accordingly, we conclude that the [trial] court properly found that, in denying the application, the commission did not exceed its jurisdiction to consider the impact of activities and improvements proposed to be developed in wetlands and watercourses and in the 100 foot upland review area."

Of course, the agency had jurisdiction over activities in the wetlands, watercourses and upland review area, but what about the activities occurring outside of those areas, the ones that River Sound specifically was appealing?

The Appellate Court just didn't answer the question that it indicates that River Sound posed. What's the take-away message from River Sound on jurisdiction? Is it "enough" that the majority of activities are within the wetlands or upland review area? Overwhelming majority of activities? Just over 50% ? We don't know. I may not agree with the Appellate Court ruling in Prestige Builders (I don't), but it is clearly articulated, so that anyone can follow the ruling and apply it to future cases. Not so with this holding in River Sound.

Agencies are seeing fewer applications that propose activities in wetlands and watercourses. The trend is for applicants to pull their activities out of those areas and into the upland review area and outside the upland review area. These circumstances are going to continue to appear around the state. So, what will you or your lawyer do when faced with an application with activities beyond the upland review area? Choose the Appellate Court decision that supports what you want. This certainly calls for Supreme Court resolution of this essential jurisdictional issue.

A fine kettle of fish.

In the next post we'll look at the Appellate Court's handling of the wildlife evidence.

Saturday, July 24, 2010

State Appellate Court upholds Old Saybrook's denial of wetlands permit for golf course in coastal forest: Part I

River Sound Development, LLC v. Inland Wetlands and Watercourses Commission

Earlier this week the Connecticut Appellate Court released its decision upholding the Old Saybrook wetlands agency's denial of a wetlands permit to River Sound Development, LLC ("River Sound"). River Sound, a subsidiary of the former Lehman Brothers, acquired its interest in nearly 1000 acres from The Preserve, LLC. The vast majority of the land is in Old Saybrook with 65 acres in Essex and 2 acres in Westbrook. It is thought to be the largest coastal forest in Connecticut. River Sound applied for a wetlands permit for a golf course, 221 residential units, roads and associated infrastructure.

In a previous application River Sound's predecessor, The Preserve, sought permission for 24 residential lots and a golf course lot, with a private country club and 18-hole golf course. In that application the residential component was denied and a permit for the golf course was granted with numerous conditions. Robert Lorenz, an abutter, appealed the permit issuance. In Lorenz v. Old Saybrook Inland Wetlands and Watercourses Commission, dated May 12, 2004, the trial court sustained Lorenz' appeal. The golf course was issued subject to numerous conditions. The trial court held one of the conditions illegal. The illegal condition required The Preserve to post $300,000 to establish a fund for the payment of damages to drinking water wells from the application of pesticides to the golf course. As argued by the DEP, the trial judge ruled that there is no authority in the wetlands act, express or implied, that authorizes a wetlands agency to impose a condition addressing damages arising from groundwater well contamination. The judge found the condition so integral that the agency would not have granted the wetlands permit for the golf course without the condition. The appeal was sustained.

In the summer of 2005 River Sound filed its application for the current proposal. The Town of Essex and the Connecticut Fund for the Environment, Inc. became environmental intervenors in the application. Ten nights of public hearing ensued. In March 2006 the agency denied the permit citing eleven reasons. The trial court upheld the agency's denial. Earlier this week the Appellate Court upheld the trial court decision. Thus, no permit for the current proposal of a golf course, residential lots, roads and infrastructure.

In affirming the denial, the Appellate Court pointed to expert opinions offered by Professor Peter Patton from Wesleyan University, George Logan and Sigrun Gadwa, regarding the connection between large-scale clearing, siltation and their effect on the wetlands ecology. The court also pointed out that substantial evidence existed in the record to indicate that fragmentation of the forest would result in adverse impacts to the vernal pools. Amphibian life in the upland forested areas, specifically wood frogs, would be affected which in turn would affect the physical quality of water in the vernal pools.

For those looking to stop development of that coastal forest this decision is undoubtedly a victory. For those of us who yearn for carefully articulated legal analysis that will lend predictability to future cases, this decision fell short. Regrettably, in my view, the Appellate Court left a significant legal question unanswered. We will examine those matters in future posts.

Thursday, July 22, 2010

Removal of Robert Fromer from the Windsor wetlands agency: to be continued

In June I reported on the action of the Town Council of Windsor passing a resolution, at the request of the Windsor wetlands agency, to remove Robert Fromer from the wetlands agency, so that he not finish up his remaining two years. According to the Windsor town charter, prior to a final decision removing him from the agency, the Town Council must afford Robert Fromer a public hearing, if he so chooses. That hearing was scheduled for July 3, 2010. The hearing was opened and adjourned after two minutes, with the public hearing to be continued on August 3, 2010. I learned from the Land Use Office that Mr. Fromer requested the 30 days to prepare himself for the public hearing. Continue to stay tuned.

Sunday, June 13, 2010

Stew Leonard's wetlands denial revisited

Stew Leonard is giving up his decade long battle to build his dairy store in Orange, as reported recently in the New Haven Register.

Early on in this blog I reported on the state Supreme Court decision reversing the wetlands agency's approval for Stew Leonard's proposal of a dairy and grocery store adjacent to the I-95 highway ramp in Orange. The proposal won zoning approval but had its wetlands approval thrown out based on the conditions in the approval. The Supreme Court decision in Finley v. Inland Wetlands Commission, 289 Conn. 12 (2008) the court found illegal the issuance of a permit with a condition requiring the submission of a revised sedimentation and erosion control plan that implements all state regulations. It went something like this: if the agency needed such a revision, it shouldn't have approved the application in the first place. My concern about the decision: What is the bright line determining a valid condition from an invalid one. How do agencies read this case and go forward?

This appeal was brought by environmental intervenors who are only entitled to raise wetlands issues. Well, when the citizens were quoted reacting to Stew Leonard's pronouncement that he was giving up the project in Orange, they didn't manage to articulate any wetlands concern, any environmental concern at all, for that matter. They thought the project would generate too much traffic and take up too much of the town services. Not exactly wetlands issues. In fact, those concerns didn't prevent the project from getting zoning approval.

This was, I believe, the first successful denial of an agency permit brought pursuant to the Connecticut Environmental Protection Act. Thirty-six years passed since CEPA was enacted and the Supreme Court reverses the permit because it contained a condition to revise the sedimentation and erosion control plans in accordance with the state guidance document which Stew Leonard's agreed to do. Eighteen months after the citizens' victory they don't even mention the only winning issue - wetlands. It's leaves me wondering about the value of CEPA in the twenty-first century.

Thanks again to Attorney Matt Berger of New London for pointing out the newspaper article about the Stew Leonard's proposal in Orange. He always keeps me on my toes!

Windsor wetlands agency seeks removal of fellow member

The Windsor wetlands agency is seeking the town council's removal of wetlands agency member Robert Fromer. According to an article in the Hartford Courant, the agency voted 4-1 (with Fromer dissenting) to request the town council action. In a letter to the town council the wetlands agency chairperson, Linnea Gilbert, characterized Fromer's behavior as "unprofessional and antagonistic" and seeks his removal due to his "antagonistic, condescending and unprofessional behavior and comments to applicants, fellow commissioners and town staff." Fromer is halfway through his 4 year term as an agency member. On June 7, 2010 the Windsor town council unanimously adopted a "resolution of intent" to remove Fromer from his post. As an interim measure, the council resolution suspends him pending the charter-mandated public hearing, which must be held within 30 days of June 7th.

Robert Fromer is a well-known plaintiff for appeals and suits brought when he lived in southeastern Connecticut.

It's been quite some time since the courts have looked at removal of a wetlands agency member. Thirty years ago the Connecticut Supreme Court upheld a trial ruling ordering the Board of Selectmen in Brookfield to reinstate Barbara Obeda to the wetlands agency after she was removed by the Board "for cause." In Obeda v. Board of Selectmen, 180 Conn. 521 (1980), based on the facts in that case, the state Supreme Court set the bar high for proving cause. Looking at the five grounds the town relied on, the Supreme Court dispensed with each of them: refusal to disqualify herself, discourtesy to other agency members, personality clash with other agency members, her attempt to secure the resignation of a senior agency member, her belief that the town engineer lacked expertise.

I've thought the Obeda case was a signal that towns and agencies shouldn't come running to the courts when members don't get along optimally. In Windsor, it is alleged that the town is having difficulty filling vacancies due to Fromer's conduct; two positions and two alternate positions are unfilled. It remains to be seen what facts will be put forth in the case for removal and for Fromer's defense.

Is there a point when rudeness and inability to get along are sufficient bases for removal "for cause"? Stay tuned.

Friday, June 11, 2010

Wetlands training: self-reliance instead of training workshops?

Anytime I engage folks in the discussion of training the question is almost always posed: why aren't more of the training materials available online? DEP is building up a library of resources on the DEP wetlands webpage. The materials distributed at the 2010 Segment II training are available by scrolling down the DEP wetlands webpage, in the text, not the links to the topics in the left column.

I clicked on the "presentations and handouts" and was interested to find a "presentation on pesticides." While working at DEP, I handled a lot of pesticide enforcement matters, devoting years to some big cases. I wasn't aware of the DEP pesticide folks' involvement in wetlands training before. I highly respect the DEP pesticides program staff and I know that Brad Robinson knows his stuff.

This post is not about what Brad put into the materials, but what members might take away. So turn to page 30 of 40 in the "presentation on pesticides." On the page are 2 photos, both of phragmites. One caption states: "No permit needed -- phragmites on roadside". The other caption states: "Chemical control requires permit -- phragmites in water". The text on that page states: "Even though the roadside area may be a wetland as defined by soil, the permit requirement is for application to standing water." Those are all of the words on that page.

So, a wetlands agency member reads this at home. Does "no permit" mean no wetlands permit? This is wetlands training, after all. I am confident that had that question arisen during training, Brad would have jumped on it and made it clear he was referring to the state DEP permit process for regulating the application of pesticides to the waters of the state. Certainly that's what the front page of the materials states. Will members figure out the difference between the DEP aquatic permit and the wetlands permit? They would, if they attended training. Someone reading the materials, interrupted by talking, texting or TV, could easily take the text on page 30 out of context and conclude no municipal wetlands permit is needed for land applications. Again, this is not about the written materials, this is about the environment in which the materials are used.

My conclusion is not to restrict what materials are available online, but to provide better methods of interactional training. I'm a greater believer in live training workshops. Then again I was a music major in college (voice) and an active participant in musical theater. Life is a cabaret, my friend.

But when there are five locations for the DEP training, inevitably there are areas of the state where it feels too far to travel to be trained. Can technology help us out? The Environment Section of the Connecticut Bar Association held its first meeting (I believe) where one of the presenters was not among us. Thanks to cutting-edge technology, a professor from the Vermont Law School appeared to us "live" and was able to interact with the other presenters and the audience. What appears too high-falutin' and remote in 2010 may become state of the art training in 2012.

And another word about pesticide applications. The materials stress that adverse effects from pesticide applications in water are rare. DEP knows the statistics better than I do. But I must happen to live on one of those rare streets. In 2005 I saw that signs had gone up around the pond in our neighborhood, indicating the aquatic use of a pesticide. I called Brad Robinson and told him the pesticide. He explained that the pesticide used was common to control vegetation in ponds and that it works by treating 1/2 the pond at a time allowing the fish to swim into the untreated portion of the pond. Because the commercial applicator posted a sign, I didn't think to ask Brad whether the DEP had issued a permit for it. Two days later I was walking around the pond again and was alarmed to see what I estimated were 80-90 dead fish in the pond. I made a formal complaint to the DEP pesticides program. The DEP fisheries staff investigated along with the pesticides program and established over 500 dead fish. The commercial applicator had neither a DEP aquatic pesticide permit nor a municipal wetlands permit. The pesticide indicated on the sign was not the pesticide used and the applicator violated the label requirements regarding the application of pesticide that was used.

Permits are important. And agency members understanding what permits are required is basic.

More training materials with more opportunities for interactional training are needed. And still to come in future posts, my thoughts on higher standards for wetlands agencies.

Thursday, June 10, 2010

DEP wetlands training video available on DEP website

I have received comments that folks are frustrated by the lack of training material available online. Good news for those of you wishing to view the DEP training video which covers introductory legal topics as part of the DEP training. It is available online on the DEP website. I spent too much time not finding it. I went to the DEP wetlands homepage and looked under "Training for wetlands agencies" and then under "Resources and References." After I had clicked on all of the links, I broke down and called Darcy Winther at DEP. She kindly pointed out that it is on the homepage itself in the middle of the text. The video can be viewed here.

You can now watch the training video in the privacy of your own home. You can be multi-tasking, watching the video on your laptop, ipad, or netbook, while watching a game on tv. You can simultaneously be texting, talking or washing the dishes (does anyone multi-task to do household chores?) And therein lies the problem. There is no quality control to the environment in which self-training can occur. As someone who helped DEP develop the legal training for wetlands agencies in 1990 and as a trainer throughout my tenure at the Attorney General's Office (2006) and to date through CACIWC and the CT Bar Association, I continue to believe that the most important portion of any training time is the Q & A period. It's immaterial to me whether Q & A is interspersed with the training or held at the end. But if the trainer doesn't have any feedback on how the participants are understanding the materials, then neither do the participants.

I'm all for use of the video to reinforce training. Especially since it covers the introductory concepts. Is it your first time on any kind of regulatory agency? You might need to hear more than once the kinds of conduct that are illegal as a commission member. I've heard Steve Tessitore, the DEP municipal liaison to wetlands agencies, state on numerous occasions, that members need to hear a topic 7 times before they can change how they act. If the video is available whenever a member has a question and if it answers the member's precise question, that's great. Then the video can be repetitions #2 through #7, speeding up the learning curve. The Q & A of a training session is an opportunity to ask any question without knowing the answer. The alternative can bring dire results: members take an action on someone's application that is simply wrong, because they didn't have an opportunity to ask someone how to proceed.

If there is a serious push to allow review of visual or printed materials online as a substitute for attendance at training courses, I think testing should become a component of the self-education process. How else would the agency member or DEP know whether the material was being absorbed? Steve Tessitore was quite adamant in opposing a testing system, noting how it would tax the DEP, etc.

Complement not substitute. The video is a useful adjunct in the ongoing process of becoming a trained wetlands agency member. It is not a stand-alone tool.

In the next post I'll highlight the problem of relying on written materials, by examining some of the material posted on the DEP website for training that occurred this spring.

Monday, May 31, 2010

Training of wetlands agency members: Unfinished Business, Part II

Maybe some of you don't see the need for me blathering on about wetlands training. If a majority of members of every wetlands agency had completed the DEP comprehensive training and a majority of members of every wetlands agency regularly attended Segment II of the DEP training or the case law and legislative review offered at the CACIWC annual meeting, training could be a non-issue. Training is still an issue for a couple of reasons.

The Council on Environmental Quality produced a special report Swamped: Cities, Towns, the Connecticut DEP and the Conservation of Inland Wetlands, in 2008. During the period of 2000 through 2006 thirty-seven towns had no member who completed the annual comprehensive DEP training. The CEQ report notes a correlation between higher training and higher protection afforded wetlands (fewer acres of wetlands impact allowed).

Recently The Connecticut Mirror featured a special article by Matthew L. Brown which highlighted the unresolved problem of lack of wetlands agency training. Brown contacted an official in one of the towns noted in the 2008 CEQ report as not having any trained members. Brown spoke to Richard Matters, the First Selectman in Franklin, inquiring about the current status of trained members. Mr. Matters believes the town is still be on the list for no trained members. He cited the difficulty to get people to serve, although Brown noted there are no vacancies on the wetlands agency.

Those are the reasons that training is still an issue.

Is there anyone who thinks agencies which fail over a significant period of time to meet the training requirement -- one trained member -- are qualified to administer the wetlands act?

Is there anyone out there who would like to go before an agency with no trained members?

I invite you to send suggestions to improve the statistics on training, whether they involve amending the wetlands act or changing the means of training. I am happy to continue to receive comments directly to me at my e-mail address ( Thanks to all of you who send me comments, and thanks to Attorney Matt Berger of New London who pointed me in the direction of The Connecticut Mirror article. However, I also invite anyone to submit comments on the blog. (At the end of each entry is a notation of "0 comments." If you click on comments, you are able to send your comment.)

I will use any comments I receive to open a dialogue and seek further comments. I am happy to float your ideas without attribution, if you prefer anonymity. The CEQ has noted its intention of proposing legislative language for the 2011 session. As a member of CEQ, I would like to have a sense of the possible "carrots" and "sticks" to be employed.

In the next entry I will start with some of my suggestions, some benign, some severe. And thank you for the comment I have already received wondering why the DEP training DVD isn't on its website. I will ask DEP and report back.

Training of wetlands agency members: Unfinished business, part I

There were two attempts to revise legislative bills affecting the wetlands law to address training of wetlands agency members. Because each of the underlying bills did not progress, neither did either attempt to address training. This issue is not going away. Expect to see legislative proposals next session. So, we'll review what was proposed in 2010.

I reported on efforts to protect natural vegetation near wetlands and watercourses over the course of the legislative session. Click here and here to read those entries. The Connecticut Fund for the Environment (CFE) proposed alternate language which a number of environmental groups endorsed in lieu of the legislative proposal. As part of that proposal the environmental groups proposed a simple addition to § 22a-42a(e), the statutory provision that allows agencies to impose a filing fee. As currently written, the law states:

The amount of such fee shall be sufficient to cover the reasonable cost of the reviewing and acting on applications and petitions, including, but not limited to, the costs of certified mailings, publications of notices and decisions and monitoring compliance with permit conditions or agency orders.

After the phrase "publications of notices and decision" the environmental groups endorsed adding "training of inland wetland agency members." I was a pretty strong vocal proponent of this amendment (instigator?) on the conference calls amongst the environmental groups supporting this bill. Many agencies say they don't have the funding to support training. DEP by law must allow one agency member to be trained at no cost per year. For those agencies with a lot of turnover or a lot of untrained members or members who wish to keep up with the case law and legislative changes, the costs of training can add up. Not a good time to be asking for a larger part of the municipal budget. This proposal was an attempt to generate an income stream for training from the those who would benefit greatly by trained members, the applicant pool.

The second proposal came from the Council on Environmental Quality when it commented on the bill concerning Enhancements to the Inland Wetlands and Watercourses Act. (I am an appointed member of the CEQ and supported the board's decision.) The CEQ comment proposed a sentence at the end of § 22a-42a(d), the statutory provision setting out the requirement that there must be one member of the agency or its staff who has completed the DEP comprehensive training. The CEQ proposed language:

On and after January 1, 2012, each agency shall state on the record, at the commencement of each hearing or meeting at which the agency will be considering one or more applications, petitions or requests, the number of members and staff that have received a certificate for completing the comprehensive training program issued pursuant to Section 22a-39(n).

Then, as the legislature would have it, those two bills were merged into "An Act Concerning the Preservation of Natural Vegetation near Wetlands and Watercourses and Certain Enhancements to the Inland Wetlands and Watercourses Act." Of this I'm certain: neither proposal regarding training made it into that merged bill. No matter -- the bill didn't go anywhere.

The CEQ has discussed the issue of a stand-alone bill on wetlands training for the next legislative session.

Conclusion at end of 2010 session: no new approach to training -- unfinished business.

Friday, May 21, 2010

The Council on Environmental Quality issued its 2010 annual report, Environmental Quality in Connecticut. The report evaluates the state of the environment, reflecting on a variety of indicators. This is the second year that the annual report is paperless and available online. The conclusion for the Inland Wetlands Page is stark:

Cities and towns have permitted destruction of fewer wetland acres most years since 2000. However, that trend reversed in 2008.

The report notes in word and by bar graph that the number of wetlands acres disturbed in the state has dropped significantly from the early 1990s (between 450-475 acres/year) to 2006-2007 (less than 100 acres/year). Starting in 2008 and continuing in 2009 slightly more than 100 acres were disturbed in the state, with 2009 exceeding 2008. The increased disturbance coincides with the economic downtown which seems more responsible for fewer applications being filed around the state.

The report also tracks the number of wetlands acres created -- while noting it does not evaluate the success of the wetlands created. That bar graph looks more like a roller coaster: a small spike in 1991 of over 100 acres created, retreating for most of the 1990s to less than 100 acres created, with 2000, 2004 and 2008 showing significant spikes to close to 200. In 2009 the number of wetlands acres created dropped to below 100.

The report determined that wetlands agencies have been approving less disturbance per wetlands application, approximately 0.02 acres per permit since 2004.

The report continues to point out that many wetlands agencies fail to comply with the only training requirement in the wetlands statute: one trained agency member or staff. There is a link to CEQ's special report issued in October 2008 Swamped, that documented 37 non-complying wetlands agencies. This is unfinished business. I will return to this topic in future posts.

As an appointed member to the Council on Environmental Quality, I know the quality of the annual report is a direct reflection of the terrific work of the executive director, Karl Wagener, and CEQ staff, Peter Hearn. Thanks, Karl and Peter.

Thursday, May 20, 2010

The Consequence of Good Government

Today I daylight the promulgation of a longstanding "policy" of the Stamford wetlands agency, the Environmental Protection Board, into regulation as of April 6, 2010. According to Dave Emerson, the longstanding staff person to the EPB, the board has had a longstanding "informal policy" of "no net loss" policy for wetlands and watercourses. Just to review, the Inland Wetlands and Watercourses Act does not establish a policy of "no net loss" of wetlands and watercourses. It sets forth a process to be implemented at the municipal level, a process of balancing natural resource considerations with use of property. Each municipal agency, if it follows the law (the statutes and the case law precedent), can draw that line where it wishes.

Earlier this year I reported on a legislative proposal that was an attempt to circumscribe the use of policy or guidance statements that have been relied on by regulators as regulations, without having been adopted as regulations. In the wetlands context I reflected on how the Connecticut Stormwater Quality Manual and the 2002 Connecticut Guidelines for Soil Erosion and Sediment Control are too frequently referred to as "standards" by municipal wetlands agencies.

The EPB, according to Dave Emerson, was influenced by that post to cogitate on its "longstanding informal policy" of no net loss. Through regulatory action, and approved by the Stamford Board of Representatives, the EPB has added subsection (c) to Section 1.3 to its regulations, the "no net loss" policy, as follows:

In the furtherance of the foregoing goals the Environmental Protection Board hereby adopts a “no net loss policy for all wetlands and watercourses.” In furtherance of the no net loss policy, the EPB may require wetland mitigation that may include Avoidance by evaluating alternative development designs and sites; Minimization by implementing special design features and construction practices so that impacts to wetlands can be minimized; and Compensation by offsetting remaining wetland losses through measures to, in the following order of priority, enhance and create productive wetland or watercourse resources either onsite or offsite.

Now, everyone is on equal footing. You don't have to be the longstanding staff person to the board, or a longstanding member of the board, or a longstanding local watchdog. You can file an application for the first time or pick up the regulations tomorrow and realize everyone is going to be addressing no net loss when the application comes up. Exactly the reason that important policies that are used uniformly need to be adopted as regulations.

As the mother of two teenagers I am called upon (too often) to comment on acts (foolish, thoughtless or worse) and their consequences (pouting, punishment, and general family agita). It's the "act/consequences" discussion. So, I am happy to congratulate the Stamford Environmental Protection Board on turning its thoughts into action. An action which serves applicants, concerned citizens and every person appearing for the first time before the Stamford wetlands agency.

Friday, April 23, 2010

Natural Vegetation Bill "Killed" for Session States Environment Committee Co-Chair

In an open letter dated April 15, 2010 to "Environment Advocates and Other Interested Persons" Senator Ed Meyer, co-chair of the Environment Committee, announced that the Planning and Development Committee of the General Assembly "killed" the Natural Vegetation Bill, File No. 190 by failing to act on it during its April 14th meeting. In the letter Senator Meyer sets forth procedurally what occurred (or didn't) leading up to the Planning and Development Committee's failure to vote on the bill. I attach the letter to establish that it was not a dispute on the merits that sealed the bill's fate. The internecine battles in the political arena have obscured whether any policy issues were considered.

Is the "killed" bill dead? It's not over until it's over. Resurrection may just be one amendment away.

Thursday, April 22, 2010

My, how the Environment Committee has strayed from the spirit of Earth Day 1970

April 22, 1970. Those were heady days. Throngs of people gathering and clamoring for change. In Connecticut the next legislative session following Earth Day resulted in the passage of the bill creating the department of environmental protection at the same time as the enactment of the Connecticut Environmental Protection Act: establish a state agency to do the job but also create a mechanism for anyone to protect the natural resources from unreasonable impact. This giddy enthusiasm for protecting natural resources continued into the 1970s for inland wetlands and watercourses. It was in the spring of 1972 when the bare bones of the Inland Wetlands and Watercourses Act was overwhelmingly passed.

People were effusive in their support of the original bill -- a bill which did not include a permitting requirement or any other requirement. Attorney Russ Brenneman, special counsel to the newly formed DEP, testified that inland wetlands should be managed and not left to the private sector. He noted that the zoning enabling act was not broad enough. DEP was there to listen: it could not handle the administrative burden of regulating wetlands, so he noted. He thought that DEP would issue a series of protective orders.

The bill looked like this:

· the legislative finding that we all know and which is quoted verbatim by the Connecticut Supreme Court in almost every decision: the act is a matter of balancing the environment with economics
· the (same) title
· the same exemptions, which you love/hate depending on who you are, were written in a confusing way (Aren't the exemptions confusing now, too? Yes, but they were way more ambiguously written, if you can imagine that.)
· a section with definitions, including many which still exist, such as "regulated activity" even though regulated activities weren't "regulated" under the original bill.
· a description of the commissioner of DEP's authority over inland wetlands: supervise the act, develop a comprehensive program, advise, consult and cooperate with other agencies, promulgate regulations to protect wetlands and watercourses, and inventory those resources.
· a list of factors for consideration when the commissioner of DEP goes about creating a regulatory system for wetlands/watercourses
· a policy of encouraging, not requiring, municipal participation in wetlands affairs by acquiring wetlands, regulating them by adopting regulations consistent with DEP's regulations once DEP promulgates them.
· a right to appeal a "regulation, order, decision or action" under the act, with a court assessing damages if a taking of property is proven
· enforcement of violations solely by direct action in court -- no provision for cease and desist orders
· the right to have property revalued for tax purposes if a wetlands license is denied

Public Act 155 in the 1972 session was approved on May 19, 1972. It was pregnant with hope and trust that either through DEP regulations or further legislative action a meaningful regulatory mechanism would emerge to protect wetlands and watercourses.

The wetlands act with its substantive and procedural requirements as we know it today did not exist in 1972. The sine qua non -- no regulated activity shall be conducted without a permit -- had yet to be created. "License" was included as one of the original definitions to mean: "the whole or any part of any permit, certificate approval or similar form of permission which may be required of any person by provisions of this act." The legislature used words that anticipated that regulated activities would be subject to a licensing procedure. But how, who, what, when all remained in the future. The permit requirement emerged in 1973, codified in General Statutes section 22a-42a, since all of the section numbers had already been assigned.

Fast forward to mid-April 2010. Just a few days before the 40th anniversary of Earth Day the Environment Committee voted to endorse a bill voted out of the Commerce Committee, File No. 380, An Act Concerning the State's Regulatory Environment. I won't dispute the merits of expediting the issuance of state permits. But the Environment Committee endorsed a bill that includes a provision of automatic approval of DEP permits that aren't issued within a specified time.

Section 3 of File No. 380 requires DEP to submit to the Environment and Commerce Committees of the legislature by January 1, 2011, a pilot program applicable to a permitting program affecting at least 250 manufacturing or other industrial facilities. The plan that DEP must provide has to:

· impose a time limit for issuing a permit
· provide for default approval for any permit not issued within the time limit unless the permit has been denied "for good cause" or the time limit has been extended
· include standards for "good cause" denial
· list permissible reasons for extending the time limit
· limit the number of extensions which the commissioner may grant.

If this emerged solely from the Commerce Committee, one might reflect that the legislative committee was doing its job, trying to protect commerce in the state, even if imperfectly designed. But this was sent to the Environment Committee which has passed it out of committee earlier this week. Creating this pilot program requires the Commissioner of Environmental Protection to violate the policy of the state set forth in the opening section of Title 22a "Environmental Protection" that the state act as "trustee of the environment for the present and future generations."

My, how the Environment Committee has strayed from the spirit of Earth Day 1970.

Wednesday, April 21, 2010

One More Appendage in the Amended Language of the Natural Vegetation Bill

In my last post I described the merger of the Enhancements to the Inland Wetlands and Watercourses Act, Bill 205, into the Natural Vegetation bill, Bill 123, now File No. 190. I referred to the appendages that the Natural Vegetation bill acquired, but omitted a description of one of those appendages. While awaiting the results of the bill's sojourn to the Planning and Development Committee last week, we'll look at those missing appendage.

Imported into the Natural Vegetation bill is the language originally found in the Enhancements bill:

The inland wetlands agency shall consider all relevant evidence brought before such agency or its agent by any person or entity, including, but not limited to, scientific evidence, expert opinion, direct observations made regarding the proposed regulated activity, environmental reviews, policy letters or guidance documents provided by or on behalf of an environmental review team or by the Department of Environmental Protection and written comments or oral testimony submitted by the Commissioner of Public Health or by or on behalf of a water company in response to written notice provided to such water company pursuant to section 22a-42f.

As I inquired the first time addressing this bill, is there someone out there who thinks that we're breaking new ground by requiring a wetlands agency to consider scientific evidence, expert opinion, and direct observations? Haven't agencies been doing that for 30+ years? I need some guidance, however, on what it means for a wetlands agency to consider "policy letters or guidance documents" by an environmental review team or the DEP. It certainly can't mean to consider the guidance document uniform policy to be implemented across the board -- or else that guidance document would have been adopted as a regulation. What exactly is the lay, volunteer wetlands agency being required to do when it "considers" a guidance document? That's a miasma begging for years of litigation to clarify.

What's odd is that a number of bills were circulated this session restricting or regulating DEP's use of guidance documents that haven't been adopted as regulations -- while the Natural Vegetation bill would "require" wetlands agencies to consider guidance documents. Consider Bill 120, now File No. 228, An Act Authorizing Review of the Department of Environmental Protection's Guidance Statements and Policies by the General Assembly's Regulation Review Committee, and Bill 174, now File No. 385, An Act Concerning the Standards of Water Quality.

It would be an ironic turn of events if the DEP, an agency chock full of experts, can't rely on guidance documents, while lay wetlands agency members are required to consider those documents.